Coleman v. Smith ( 1920 )

Smith, C. J.,

delivered the opinion of the court.

The appellee sued the ^appellant on a promissory note executed by the apjShlíaíi'b to W. R. Denton. The right of the appellee to sue on the note is set' forth in the declaration as follows:

“That on the 7th day of April, 1919, the chancery court in vacation, by decree recorded in Minute Book 9, p. 156, of the chancery clerk’s office of Alcorn county, subrogated this plaintiff to all of the rights of W. R. Denton in the said note and trust deed, and it thereby became the duty of the defendant to pay this complainant the amount called for by the said note with interest thereon and ten per cent, attorney’s fees provided therein.”

At the close of the evidence the court refused to direct a verdict for the appellant, but directed one for the appellee, and there was a judgment accordingly. It appears from the evidence that Coleman purchased from Denton an automobile for future delivery,, that Smith, turned over to Coleman an automobile which he then owned under an agreement that Denton should deliver to Smith the auto; mobile purchased from him by Coleman, for which Cole-, man would pay Denton. Coleman then made the promissory note here sued on payable to Denton and secured it by a deed of trust on certain property and delivered both the note and the deed of trust to the clerk of the chancery court for delivery'by him to Denton after the deed of trust had been recorded. When Smith called on Denton for the automobile that he agreed to sell Coleman, Denton declined to deliver it; his reason therefor not being material in view of the point on which our decision will turn. Denton also declined to accept or receive from the chancery clerk the note and deed of trust executed by Coleman. Afterwards Smith attempted by an original bill in the chancery court to force Denton to specifically perform his contract with Coleman to deliver to him (Smith) the automobile alleged to have been purchased from Dain*'v" Coleman, but did not make Coleman a party thereto. On the final heaping a decree was renuereu. uisr missing this bill and adjudging:

“That the said C. W. Smith is hereby subrogated to all the right and benefits in said trust deed, that ..the said defendant, W. R. Denton, had in and.bv virtue of said trust deed.”

The only right claimed by Smith to sue on the note is such as was conferred on him by this decree, but we are not called on to determine what right was thereby intended to be conferred, for as Coleman was not a party to the decree it, of course, is not binding on him, and in so far as he is concerned it conferred no right on Smith, for which reason the peremptory instruction requested by Coleman should have been granted.

Reversed, and judgment here for appellant.

Reversed.